Summary: The Ombudsman will not investigate this complaint about the action the Council took in relation to a breach of planning control. This is because it is unlikely the Ombudsman would find fault by the Council and the complainant could have appealed to the planning inspector.

The complaint

1. The complainant, whom I shall refer to as Mr X, has complained about how the Council dealt with allegations that he had breached planning control.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
3. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• it would be reasonable for the person to ask for a review or appeal.

(Local Government Act 1974, section 24A(6), as amended)

4. We cannot investigate a complaint if someone has appealed to a government minister. The Planning Inspector acts on behalf of a government minister. (Local Government Act 1974, section 26(6)(b), as amended)
5. The Planning Inspector considers appeals about:

• delay – usually over eight weeks – by an authority in deciding an application for planning permission
• a decision to refuse planning permission
• conditions placed on planning permission
• a planning enforcement notice.

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How I considered this complaint

6. I have considered Mr X’s complaint and the information from the Council. I invited Mr X to comment on a draft of this decision and I have considered his comments in response.

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What I found

7. Planning permission is required for the development of land, including its material change of use. Planning authorities may take enforcement action where there has been a breach of planning control. A breach of planning control includes circumstances where someone has built a development, or changed the lawful use of land, without permission. It is for the Council to decide if there has been a breach of planning control and what, if any, enforcement action is necessary.

What happened

8. The Council received reports that Mr X’s home was being used as a bed and breakfast. The Council started an enforcement investigation and found that part of Mr X’s home was being used as a bed and breakfast. The lawful use of the property is residential. The Council decided that as three of the five bedrooms were being rented out, there had been a material change in use of the land and a breach of planning control. To remedy the breach, the Council told Mr X that he must not let more than two of the bedrooms on any night. The Council’s enforcement officer also found that the bed and breakfast rooms had a separate access. The Council said this could create a separate planning unit and told Mr X that the internal locks should be removed, and the separate access permanently locked to remedy this.
9. Mr X made the necessary changes but disputes that there was a planning breach and is unhappy with the changes he has had to make. He says he has lost income as a result of the Council’s actions.

Assessment

10. The Ombudsman will not investigate Mr X’s complaint about the action the Council took against him for a breach of planning control. This is because it is unlikely the Ombudsman would find fault by the Council. Mr X could have also appealed to the Planning Inspector if he disagreed with the outcome of the Council’s enforcement investigation. The Ombudsman will not normally investigate where someone has an appeal right.
11. When the Council receives a report about a suspected breach of planning control, it should carry out a proportionate investigation to decide if there has been a breach and if any action is needed. In this case, I am satisfied the Council properly looked into the concerns raised about the unauthorised use of Mr X’s home before deciding there had been a breach of planning control. As it properly considered the matter before reaching this decision, it is unlikely I could find fault by the Council. The Council was entitled to use its professional judgment in this regard and the Ombudsman cannot question its decision unless it was tainted by fault.
12. I understand Mr X does not agree with the Council’s decision, he argues that he did not divide his property to create a separate unit to use as a bed and breakfast and says he follows government guidance regarding renting rooms. However, if Mr X did not agree with the outcome of the Council’s enforcement investigation he could have waited until the Council served him with an enforcement notice and appealed to the Planning Inspector. Disputes about enforcement action will be a matter for the Planning Inspector.
13. Mr X has also complained that he is being harassed by the person that reported the planning breach and says the Council has encouraged the harassment by telling third parties the outcome of its enforcement investigation. However, it is normal practice for councils to notify anyone that reports a possible planning breach once the investigation is concluded. The Council is also not responsible for the actions of third parties. Therefore, it is unlikely I would find fault in this regard.

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Final decision

14. The Ombudsman will not investigate this complaint. This is because it is unlikely the Ombudsman would find fault by the Council and Mr X could have appealed to the Planning Inspector if he did not agree with the outcome of its enforcement investigation. The Ombudsman will not normally investigate where someone has an appeal right.

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Investigator's decision on behalf of the Ombudsman